[Delhi Riots] Shahrukh Pathan fired shots but had no intention to kill: Defence to Delhi Court

Shahrukh Pathan, the man facing an attempt to murder charge for brandishing and firing a gun at a policeman during the Delhi Riots of 2020, sought discharge from the case, arguing that he had no intention to cause injury or to kill [State v. Shahrukh Pathan]..Senior Advocate Menaka Guruswamy, who appeared on behalf of Pathan, urged Additional Sessions Judge Amitabh Rawat to consider the video footage placed on record to note that even though her client had fired a shot, it was not intended to injure or kill the policeman seen in the video..Guruswamy, therefore, stressed that a charge under Section 307 (attempt to murder) of the Indian Penal Code (IPC) was not made out in the case. She pointed out that the gun from which the shot was fired was “an old Beretta from World War 2.”She submitted that the prosecution had not brought any other witnesses to buttress its claims that Pathan had fired the gunshot with an intention to injure or kill someone..She also outlined the various statements given by the complainant (the policeman who was fired at) and stated, “State has not brought any witness who speaks of Section 307. No potential victim has been presented by the State. Only Mr Dahiya (complainant). It is through him the State consistently improves on the case that they don’t have.”The senior lawyer also questioned the introduction of a witnesses at a later stage of the investigation without any test identification parade. “Hard cases are never a test of the accused but a test of the judicial system, Bar and the society we live in,” added Guruswamy..The two times Pathan could be seen firing a gun in the video were stated to be done without any intention to injure or kill. The first gunshot was stated to have been fired while he was “pointing towards the right and looking in the right direction.”“It is unfortunate that an officer had to go through this…” Guruswamy said..On the second gunshot, it was argued that the accused was firing in the air.“You can see his arm. It is pointed in the air and he shoots...Can I shoot at someone if my arm is in the air and not bent? Residue (post gunshot) is above the accused,” Guruswamy submitted.The Court then enquired if he raised his arm as he fired the shot..The senior lawyer responded asserting that the intention had to be seen from the act. “Had I actually wanted to shoot at him, I would have certainly injured him. He (complainant) has no injury. He hurt his leg from a rock,” she submitted.The video footage of Pathan firing the gun was played by the defence counsel during the virtual hearing. The length of the video, which was about 26 seconds, was stated to be long enough for Pathan to have injured or killed the complainant.After the gunshot which was argued to have been “fired in the air”, Guruswamy said Pathan had the opportunity to injure the complainant, with whom he was seen standing shoulder to shoulder in the video.Referring to a frame in the video, she submitted, “I cannot miss now. They (Pathan and complainant) have a conversation. If I wanted to kill or injure, I had an ample opportunity… I have had ample opportunity to take at least 3 shots, even if I was the worst marksman, to injure him...” she added.The video was stated to be “very disturbing” and something that couldn’t be condoned. However, the Court was said to have been dealing with the question whether Section 307 was attracted in the case given his acts..“We have seen from the two videos that simply shooting is not indicative of murder. Shooting in the air, away, is not indicative of murder. Here, whatever my preparation was, it was to scare and not to kill,” submitted Guruswamy.The Court was informed that perhaps the State could have made a charge of Section 336 (act endangering life or personal safety of others) of IPC against Pathan.“But that is not what the State does. State stops at a high target of 307, which it cannot make,” she added..Public Prosecutor Anuj Handa began his submissions contesting the defence’s arguments. He stated that Pathan had fired the shot at level of the complainant’s head and not in the air.“He fires directly at the head of the complainant..,” he saidHe further argued that the stage of charge was not a stage where the discrepancies in statements could be tested. There were to be determined during the trial, he added.“The contention that him not having fired a second shot, suppose someone fires the first shot and he gets scared and doesn’t fire. Is there any law that says accused has to fire a second shot?” Handa argued.The prosecution’s rebuttal will continue on November 25.